The Internet Archive Pushes Back on “Notice and Staydown” in Recent Comments to the Copyright Office

The US Copyright Office sought comments in its ongoing study of the Digital Millennium Copyright Act (DMCA) Section 512 safe harbor study. They are generally looking to find out how well the notice and takedown system is working for everyone—Internet platforms and users, as well as creators and copyright holders. We think the 1998 statute struck the right balance and is generally working well, a view shared by nearly all Internet platforms and users. However, some incumbent rightsholders and their advocacy organizations disagree and think the system needs to be completely redone because it is too hard to police copyright infringement online. These complaints fail to account for the exceeding high statutory damages rightsholders can claim and other mechanisms in copyright law that favor certain categories of rightsholders over new media creators and consumers.

One dangerous idea that rightsholders continue to push for is a “notice and staydown” system. This sounds like a minor edit to notice and takedown, but in reality it would amount to mandatory filtering of the Internet for the purpose of policing copyright. Last summer we noted many of the general reasons why this idea is both dangerous and impractical. In our most recent comments, we focus more specifically on the direct threat such a system would pose to the Internet Archive and our various projects such as the Wayback Machine and the TV News Archive:

For one thing, the Internet Archive preserves the state of any given web page as it existed on a particular date via the Wayback Machine. Being forced to automatically remove material from the Wayback Machine would irreparably harm the historical record. This would be harmful for journalists who use the Wayback Machine to report on important stories of which there would be no evidence without the Archive. It would be harmful for attorneys and litigants who regularly use the Wayback Machine as evidence in legal proceedings. The very knowledge that a filter was running on the Wayback Machine would undermine its credibility as an accurate snapshot of the Internet at a given point in time. Therefore, filtering is a direct threat to our mission.

The Internet Archive also hosts the Political TV Ad Archive and the TV News Archive. As with the Wayback Machine, the very point of these archives is to preserve the historical record and ensure that politicians can be held accountable for their statements in ads or in TV appearances. A mandatory filter run on the TV News Archive might catch a famous song used in a political ad or at a campaign rally, and determine that such material must be removed. However, this would distort the historical record. This puts the Internet Archive in the untenable position of having to choose between protecting the historical record for future generations, and protecting its own legal interests.

A notice and staydown system would do far more harm than good, making Swiss cheese of the historical record and censoring legitimate speech with overly aggressive algorithms. We will continue to monitor and push back on this proposal.